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As you'll recall in the run up to passing FOSTA last year, supporters of the bill -- backed in secret by Hollywood lobbyists whose sole goal was to create liability for internet companies and force them to install filters -- kept insisting that it was all about "protecting women." There was an infamously misleading Public Service Announcement that supporters of the bill put together, staring into the camera and talking grimly about how necessary it was to amend Section 230 to save women. It starred a bunch of famous actors, including Amy Schumer, Tony Shalhoub, Josh Charles, Seth Meyers, and others.Of course, since FOSTA passed, it has yet to be used against any website. Indeed, the website that everyone kept holding up as proof for why FOSTA was needed, Backpage, was actually shut down a week before FOSTA became law under existing laws.And yet, FOSTA has created tremendous real world damage. A bunch of sites and individuals have been silenced out of fear that it might be used against them, creating massive chilling effects -- including chilling effects on advocacy and information providing groups who try to help sex trafficking victims, but who now may violate FOSTA in continuing to do that work.Lura Chaberlian has now published a deep dive into how FOSTA is a "hostile law" with "a human cost" for Fordham Law School. The quick summary of the paper is that FOSTA hasn't done anything to help sex trafficking victims, but has created real harms for many women, especially those engaged in consensual sex work.

Back in March, the Pai FCC proclaimed that new FCC data indicated that the agency's decision to effectively neuter itself at telecom lobbyist behest was resulting in vast, wonderful benefits for American consumers. According to the FCC, its blind fealty to AT&T, Verizon, and Comcast quickly resulted in massive steps toward "closing the digital divide," something Pai has repeatedly claimed is the top priority of his tenure:

An 18-year-old resident of New York City is suing Apple for $1 billion. His lawsuit alleges Apple uses facial recognition technology as part of its stores' security systems and that this led directly to him being accused of multiple thefts across a handful of states… despite him bearing zero resemblance to the thief caught on tape.Ousmane Bah's lawsuit [PDF] alleges Apple failed in its duty of care by attributing all these thefts to him, despite him not being the thief, resulting in numerous harms and injuries.

We cover a fair amount of video game news here, with much of it revolving around either intellectual property concerns or the common claims that video games are responsible for all the world's ills. The latter posts can be separated into two categories: one in which the violence in games is blamed for violence in the real world and one in which those who do not enjoy the medium blaming games for producing young people who those same people decide are deficient in some way.It's enough to make you think there are really only two camps. One camp thinks video games are evil in all of the possible ways. The other camp thinks video games are great in all of the possible ways. But this isn't how the real world works. Like any other artistic medium, some products are good, some are not. Some are wholesome or thought-provoking, while others are empty calories. Even the notion that video games are solely an artistic or entertainment medium is a false premise, as demonstrated by a recent use of gaming to help identify Alzheimer's Disease before serious symptoms show up.

Former Michigan State Trooper Mark Bessner is going to jail. Bessner originally faced a second-degree murder charge for tasing a teen riding an ATV, but was ultimately convicted of a lesser charge. The details here are provided by the New York Times, which seems to be trying to further exonerate the former law enforcement officer with its reporting.

Much of the time we bring up the Trademark Office and the trademarks it approves or denies, our focus tends to be on how the general posture seems to be one geared towards approval and the often laughable approved marks that come out of that. The only example I'm going to continue to cite of this ridiculousness in these trademark posts is going to be that of the San Diego Comic-Con, which somehow has an approved trademark on "comic-con" and its variants, despite that being a plainly descriptive mark. The chaos that has caused has resulted in ongoing coverage here, but it is hardly the only example.Making it all the more frustrating are the occasions when the Trademark Office gets things right. One will occasionally catch glimpses of the USPTO doing nuanced analysis and actually applying the standards of trademark law and public confusion, and denying a trademark application. For instance, Universal Music Group attempted to get a trademark for the phrase "As Heard On TV" for its music catalog of tracks designed to be used in television. That application was denied.

This is the price we're paying to win fight stand our ground during participate in a drug war. We take criminals under our wing, turn them into informants, and send them out into the general population to engage in criminal activity -- all under the assumption this will eventually lead to the dismantling of a drug cartel.Of course, this is the same rationale propelling civil asset forfeiture. But no matter how much property is taken from people never charged with crimes, drug cartels remain intact and their products continue to flow into the country. But that's only dollars and cars and houses lost. This case [PDF] -- presided over by the Tenth Circuit Appeals Court -- deals with the loss of innocence and life… all at the hands of a DEA informant.The backstory of the DEA informant is so much easier to take than the backstory of the lawsuit, so we'll start there.

Students socialize via the internet more often than not... you know, just like the rest of us do. More and more frequently, they're being surveilled by their schools. This first came to light a half-decade ago, when documents surfaced showing a California school district had purchased social media monitoring software to keep tabs on its students. Similar stories followed, including one incident where a test publisher admitted to monitoring social media posts of students taking its tests.In about half the country, this is now standard operating procedure for schools. The Brennan Center for Justice reports schools are purchasing social media monitoring tools with increasing frequency, allowing them to track and surveil students far past the borders of the school grounds.

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Like a teenaged heterosexual boy, it appears that Facebook has no clue how to deal with naked female breasts. Going back over a decade, the quintessential example used to show the impossibility of coming up with clear, reasonable rules for content moderation at scale is Facebook and breasts. In the early days, as Facebook realized it needed to do some content moderation, and had to establish a clear set of rules that could be applied consistently by a larger team, it started with a simple "no nudity" policy -- and then after that raised questions, it was narrowed down to define female nipples as forbidden. As a wonderful episode of Radiolab detailed last year, questions kept getting raised about how specific do you need to be (each paragraph here is a different speaker, but since Radiolab doesn't supply transcripts, I'm not entirely sure who's speaking):

While Facebook (usually justly) gets the lion's share of privacy criticism, wireless carriers haven't been too far behind. In the last few years we've learned that they're frequently hoovering up your daily location data and then selling it to a long chain of often dubious companies. More recently they've been busted even selling access to E-911 location data, which is increasingly even more accurate in tracking users than traditional GPS. We've noted repeatedly that lax ethical standards result in this data often being abused by dubious third parties, or used illegally by law enforcement or those pretending to be law enforcement.Throughout these evolving scandals, the Pai FCC hasn't done much of anything to ensure the public this is being adequately looked into. There's been no critical statement about this practice issued by the FCC, and no meaningful investigation launched (at least publicly). And while wireless carriers have insisted they've stopped collecting and selling this data (which they've been doing for the better part of the last decade without anybody in either party much caring), their promises historically haven't been worth all that much when it comes to the subject of privacy.To truly address the location data scandal(s), carriers need to voluntarily or by force make it transparently clear they've stopped collecting and selling this data (which in several instances like E-911 data is against the law). Hoping to add a little fuel to the fire, FCC Commissioner Jessica Rosenworcel this week ramped up her criticisms of the practice and the FCC's apathy:

Law enforcement officers tend to frown on citizens interfering with their revenue generation. This has led to a number of First Amendment lawsuits from people arrested for warning others about [check notes] the existence of police officers in the vicinity.One citizen was told as much when he was arrested for holding up a sign reading "Cops Ahead." One cop kept on script, referring to the man's actions as "interfering with an investigation." It wasn't an investigation. It was a distracted driving sting. The cop actually hauling him to the station was more to the point, telling the man he was arresting him for "interfering with our livelihood." First Amendment violation or felony interference with a business model? Why not both?A lawsuit was filed in 2018 seeking a declaration that honking a car's horn is protected expression. And, all the way back in 2011, a class action lawsuit was filed over citations and arrests for flashing headlights to warn drivers of unseen officers.A federal judge has decided -- albeit not very firmly -- that at least one of these actions is protected by the First Amendment. Wisconsin Magistrate Judge Stephen Crocker says flashing your headlights to warn drivers of speed traps is expressive speech -- something cops would be better off not trying to punish. (via Volokh Conspiracy)Andrew Obriecht passed a speed trap outside Caledonia, Wisconsin. After passing it, he flashed his headlights to warn oncoming drivers to slow down. He was then pulled over by a state trooper, who issued him a citation for violating a state statute that doesn't really appear to fit the alleged crime:

This week, our first place winner on the insightful side is Nathan F with a simple question about the Supreme Court's request for the White House to weigh in on API copyrights:

Five Years AgoThis week in 2014, while Senators Feinstein and Chambliss were taking yet another shot at a new, concerning cybersecurity bill, they were also backing down on attempts to require transparency from the administration regarding drone strikes. The German government blocked Ed Snowden from testifying before parliament to mollify the US, we learned that the UK'S GCHQ had hidden its access to the NSA's PRISM database from its parliamentary overseers, and we were wondering why Verizon's pushback against bulk records requests was so much weaker than it could have been. This was also the week that John Oliver's Last Week Tonight debuted, with its first episode featuring an interview with Keith Alexander that we couldn't help but notice might be the toughest interview he'd yet faced, even with all the jokes.Ten Years AgoThis week in 2009, dumb tweets about swine flu led to an early preview of concerns about disinformation on social media. The BBC was happily promoting MPAA propaganda about movie piracy while claiming it was being balanced, German publishers were demanding ISPs block file sharing sites, France was still trying to adopt a three strikes law even as Nicolas Sarkozy was paying up for his own copyright infringement, and in general legacy industries were showing a real sense of entitlement with regards to the internet (not that piracy freak-outs regarding technology were anything new). The USTR finally got Canada bumped up to its Priority Watchlist for intellectual property (for some reason), Warner Music made the very foolish decision to issue a DMCA takedown of a presentation by Larry Lessig, and we learned just how bad the revolving door is with the revelation that former RIAA lawyers now working for the government only had to stay away from issues impacting their former employees for one year.Fifteen Years AgoThis week in 2004, we took a look at the one-sided file sharing propaganda being foisted on school students by the entertainment industry — and boy did it ever seem like brainwashing. The Senate was looking at four different intellectual property bills including one that would let the FBI start filing civil suits for its entertainment industry buddies, and one that would expand California's ban on video cameras inside movie theaters. TiVo was pushing advertiser dollars onto the web, an attempt to force cable companies to offer a la carte channels fell through, self-publishing was shedding some of its stigma as it got easier, and the first federal charges were brought under the recent CAN SPAM laws. This was also the week that, after much anticipation, Google officially filed for its IPO — which of course everyone had to weigh in on, including us.

When it comes to how game developers react and interact with those that pirate their games, there are obviously plenty of ways to go about it. There's the ineffective legal route, which puts developers in a bad PR light. There's the DRM route, which is a hellish waste of time. And, on the other end of the spectrum, there are devs that choose to embrace the internet and attempt to monetize piracy through human connections and innovative business models.Somewhere in the middle is the less-traveled path of simply fucking with infringers. Whether its embedding antipiracy messages into the gameplay itself, or simply overlaying the entire game with the drone of a vuvuzela, there are a couple of recent examples where developers figured out how to detect cracked versions of their games and using that to torture pirates. While I would argue there are better ways developers could be spending this time and human capital, such as innovating, it's also true that it's hard not to smile when the pirates get messed with.But this goes back much further than the last few years. The always excellent Tech Rules YouTube channel put out the following video on how Spyro 2 on the Playstation 1 tortured those using pirated copies of the game.The slow burn of this prank on pirates is what makes it both so effective and so infuriating if you believe, as I do, that all of this is mostly time wasted. The joke being played here, with the effects of using a pirated version of the game getting incrementally and progressively more profound, is indeed funny. You can just picture the person playing a cracked version of the game very, very slowly realize he or she is being screwed with.But it also appears to have taken quite an effort to pull off. And for what? We have no idea how many would-be pirates were converted into paying customers of Spyro 2 by any of this, but I cannot imagine anyone thinks that unknown number is significant. The game was reviewed well, and sold well in several regions, but not at numbers that would seem to justify the time commitment spent to convert whatever the fraction of pirates turned into customers was.So, again, funny? Yes, absolutely. Mean or harmful? Nah. A useful use of the game developers' time? I can't see an argument for that, so why bother with any of this?

The easiest way to control a certain percentage of the populace is to strip it of its humanity. It happens in prisons and jails every day. It happens to immigrants all the time. For the Chicago Police Department, dehumanizing the citizens they serve makes it that much easier to minimize their complaints and avoid treating them with any level of respect.The City of Chicago's Inspector General has released a hefty, disturbing report [PDF] on the Chicago PD's gang database. This collection of people -- all lumped together as gang members or associates -- is shared with over 500 government agencies. Given this alarming fact, you'd think the CPD would be a bit more professional when compiling it. But you'd be wrong. The thing that leaps out immediately is how demeaning the database is, thanks to officers' input.

You might recall that in 2016 Charter merged with Time Warner Cable and Bright House Networks, promising that the new, combined company would offer a revolution in customer service, broadband speeds, and TV. Instead, what the company's customers got was a steady parade of rate hikes, and a company that has found itself under fire for repeatedly trying to kill or tap dance around merger obligations (like the one stating it can't cap broadband usage for six years). New York State deemed the company's service and behavior so atrocious, it seriously contemplated kicking the company out of the state.Not too surprisingly, raising rates and offering terrible customer service continue to take a toll on the company. The company lost another 145,000 cable TV customers in the first quarter, as users (annoyed by price hikes) continue to flock to cheaper, more flexible TV options:

Roy Moore, alleged sexual abuser of teens and apparent front runner for US Senate seat, continues to sue entertainer Sacha Baron Cohen for ruining his pristine reputation. Moore was duped into appearing in a segment with Cohen in which Cohen pretended to have acquired a "pedophile detector" crafted by the Israeli Army. During the bit, the alarm beeped twice in the vicinity of Moore.According to Moore's own lawsuit, this subterfuge and subsequent beeping caused him $95 million in reputational damage because it gave viewers the impression he was, and I quote, "a sex offender." Unfortunately for Moore, this is an impression many viewers likely already had, thanks to an extended news cycle featuring a line of women accusing Moore of engaging in inappropriate behavior with them when they were teens.Even more unfortunately, Moore has decided to hire Larry Klayman as his lawyer. I suppose if you're going to lose, you may as well lose as loudly as possible. The lawsuit is far from over, though. So, that's going to give Moore the opportunity to pay Klayman repeatedly for irritating presiding judges and otherwise fail to advance Moore's case.Right now, there's an argument over jurisdiction. Moore wants the lawsuit to remain in the Washington DC court, arguing that the "injury" occurred in this location since that's where the bit featuring Moore was recorded. Cohen wants it moved to Manhattan, since that's where Moore is legally bound to bring a lawsuit according to the agreement he signed with the defendants (Cohen, CBS, and Showtime) prior to taping.The judge has decided to move the lawsuit to Manhattan despite Klayman's protests to the contrary. Klayman and Moore were likely going to lose this jurisdictional decision anyway, but Klayman made sure the loss would leave an impression on both the judge in Washington DC and the judges awaiting assignment of the incoming case. Zoe Tillman has the details at BuzzFeed.

Cecilia Kang recently had a good article in the NY Times about Mark Zuckerberg's bizarre call for governments to take over content moderation on internet platforms. Lots of people pointed out that this is obviously unconstitutional under the First Amendment, and wondered how any lawyer at Facebook could have signed off on the statement. According to Kang, Facebook is quietly arguing that it really only meant for that "regulate me!" claim to be implemented outside the US:

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It looks like a passcode still beats a fingerprint when it comes to securing your info. Maybe not from criminals, but definitely from the government. Lisa Vaas of Naked Security reports the ATF has received permission from a federal judge to apply a suspect's fingerprints to a phone to unlock it.

Like most internet of broken things products, we've noted how "smart" door locks often aren't all that smart. More than a few times we've written about smart lock consumers getting locked out of their own homes without much recourse. Other times we've noted how the devices simply aren't that secure, with one study finding that 12 of 16 smart locks they tested could be relatively easily hacked thanks to flimsy security standards, something that's the primary feature of many internet of broken things devices.One such vendor, Latch, has increasingly had its products used by landlords eager to simply access to their properties and sell the technology as an advantage. That hasn't gone over all that well in New York City, where some residents have sued their landlords over the use of the locks, which many residents found cumbersome and difficult to use. Latch at the time reached out to us to note this shouldn't be a major obstacle, since users have the option of a smartphone app, a door code, and a physical key card to access their properties.But there's another issue that has popped up regarding these products: the amount of data they're collecting and doling out to property managers. Privacy experts, for example, say the company's terms of service are overly broad, allowing the sharing of too much data with valued partners and landlords:

The Office of the Director of National Intelligence (ODNI) has released the 2018 Transparency Report [PDF]. In it, the ODNI covers the government's multiple surveillance programs, detailing (but with a minimum of detail) how much intelligence we're collecting under which authorities.It's far from perfect but it's also far more than we had prior to the Snowden leaks. Transparency was forced on the Intelligence Community following Snowden's whistleblowing. It's still an uncomfortable fit for No Such Agency and the agencies benefiting from its data and communication collections.Even though the NSA's Section 215 program appears to be on the ropes, plenty of other info, data, and communications were gathered under other authorities. Some of the data provided in the report suggests intelligence collection efforts are becoming more efficient.National Security Letters (NSLs), the self-issued demands for info favored by the FBI, are experiencing a downturn in use. Some of this may be due to the government now having to justify the indefinite gag orders attached to every NSL. It's definitely made it a lot less fun to use, seeing as most major tech companies are routinely challenging the secrecy demands attached to this paperwork.But, while NSL use may be declining, the amount of information collected remains about the same.Nearly 20,000 NSLs were issued in 2013 with 38,832 ROIs (requests for information) attached. In 2018, only 10,235 NSLs were needed to obtain nearly the same ROI total (38,872).As was mentioned above, Section 215 -- modified by the USA Freedom Act -- has all but been abandoned by the NSA. Technical difficulties already present in the program were made worse when the storage of data reverted back to the telcos the NSA approached. According to a national security advisor, this program wasn't used at all this year, and there's reason to believe it wasn't the NSA's focus last year. Despite that, the NSA still managed to obtain 434 million phone records via Section 215 in 2018.That number raises questions, some of them voiced by Senator Ron Wyden. The number of records obtained isn't even the complete total, according to his statement, and it shows the NSA is still not being honest about a collection program it now says it doesn't think is worth continuing.

Techdirt readers with good memories may recall the long saga of the EU-Canada Comprehensive Economic and Trade Agreement (CETA). One important moment was when Canada agreed to use the EU's proposed replacement for corporate sovereignty, the Investor Court System (ICS). Both are versions of so-called "investor-state dispute settlement" (ISDS), which allows companies to sue countries for alleged losses caused by government decisions. Although ICS was devised in order to blunt the growing criticism of traditional ISDS, it amounts to little more than lipstick on a pig. It still gives foreign investors unique legal privileges not possessed by local companies. However, as part of the deal to persuade the Belgian region of Wallonia not to veto CETA, the EU agreed to allow Belgium to ask the region's top court to rule on whether the new ICS was compatible with EU law.As is usual in such referrals, one of the top legal advisers of the Court of the Justice of the European Union (CJEU) offered a preliminary opinion. In this case, Advocate General Yves Bot found that the ICS was compatible with EU law. The main CJEU has now issued its own judgment (pdf), essentially agreeing with Bot on every point. The key ruling is that, according to the CJEU, the ICS won't be able to overturn EU decisions:

A correct conclusion was almost reached by the Washington Supreme Court… but it was foiled by the fact that only eight justices reviewed the case. Here's the backstory to the decision that almost was, via Nick Sibilla of Forbes.

Readers here will know that we rather enjoy when an ordinary person takes extraordinary steps to clap back against government intrusions over speech and technology. A recent example of this was a Canadian man routing around a years-long battle with his government over a vanity license plate for his last name, which happens to be Assman. One thing to note on the technology side of the equation is that as legislation seeks more and more to demonize anything to do with technology, even in some cases rightly, it causes those enforcing the laws to engage in ridiculous behavior.For example, one man in Connecticut has only just won a legal battle that lasted over a year, and cost him far more than the $300 traffic ticket he'd been given, by convincing a court that a McDonald's hash brown is not in fact a smart phone. This, I acknowledge, may require some explanation.

A wealthy Canadian businessman dragged into the ridiculous "pizzagate" conspiracy theory -- thanks to his ties to the Clinton Foundation -- is suing Twitter for harming his reputation. The lawsuit filed by Frank Giustra doesn't target the users posting these allegedly defamatory statements, but rather Twitter itself… as though Twitter were the publisher of the tweets, rather than just the platform carrying them.

A wealthy Canadian businessman dragged into the ridiculous "pizzagate" conspiracy theory -- thanks to his ties to the Clinton Foundation -- is suing Twitter for harming his reputation. The lawsuit filed by Frank Giustra doesn't target the users posting these allegedly defamatory statements, but rather Twitter itself… as though Twitter were the publisher of the tweets, rather than just the platform carrying them.

For most of the history of Techdirt, we've talked about what an incredible mess the US patent system has been. There are many, many reasons for this, but a big one was that for decades, the appeals court that handles all patent cases, the Court of Appeals for the Federal Circuit (or CAFC), kept expanding what it considered to be patentable subject matter, and the Supreme Court completely ignored the issue. This culminated, ridiculously, in the State Street decision, which massively expanded what was considered patentable software (before that there was software covered by patents, but it was very, very limited). What made this situation truly hellish for innovators, is that (1) the software world was exploding with all different kinds of apps, and (2) almost no software was documented in the very few areas where patent examiners look for prior art: mainly, other patent applications and scientific journals. There was no need to document software in those places, because (1) when most people recognized software shouldn't be patented, very few even tried, and (2) why would you?That resulted in a perfect storm in which patent trolls rushed in to fill the void. Tons upon tons of ridiculously broad patents were filed (or older ones were dug up and "repurposed" for use in trolling). Then it just became a shakedown game of numbers. Find companies doing something vaguely like what's broadly and oddly described in your patent, tell them they're infringing -- and offer to "settle" for less than the cost to win in court.The tide started to change over the last decade and a half or so, in part because of a few changes to the law, but more importantly, the Supreme Court started to wake up to the fact that the CAFC had gone rogue and had massively rewritten patent law. And then over a period of about a decade, case by case by case, the Supreme Court smacked down CAFC. Two of the biggest such smackdowns came in the Mayo Labs ruling in 2012 which rejected medical diagnostic patents, and the Alice ruling in 2014, which rejected patents on software that performs "generic functions" (which is basically all software).Both of these cases focused on Section 101 of the Patent Act, which defines what actually is patentable subject matter. It's short and sweet:

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Social media platforms regularly engage in "content moderation"—the depublication, downranking, and sometimes outright censorship of information and/or user accounts from social media and other digital platforms, usually based on an alleged violation of a platform's "community standards" policy. In recent years, this practice has become a matter of intense public interest. Not coincidentally, thanks to growing pressure from governments and some segments of the public to restrict various types of speech, it has also become more pervasive and aggressive, as companies struggle to self-regulate in the hope of avoiding legal mandates.Many of us view content moderation as a given, an integral component of modern social media. But the specific contours of the system were hardly foregone conclusions. In the early days of social media, decisions about what to allow and what not to were often made by small teams or even individuals, and often on the fly. And those decisions continue to shape our social media experience today.Roz Bowden—who spoke about her experience at UCLA's All Things in Moderation conference in 2017—ran the graveyard shift at MySpace from 2005 to 2008, training content moderators and devising rules as they went along. Last year, Bowden told the BBC:

An ongoing lawsuit by the EFF and ACLU challenging warrantless device searches at the border has uncovered some disturbing news. The CBP and ICE have guidelines that govern these searches but they're so expansive they allow these agencies to search any device for almost any reason. We know this because it came straight from the agencies in their testimony during this case.The government has long argued -- mostly successfully -- that the our rights as Americans (and those we extend to those entering our country) simply don't apply at the border. Why? The best the government can offer is that national security trumps the Constitution within 100 miles of any border, port, or international airport. Securing the nation apparently can't be done without violating rights, so rights will just have to be violated.The CBP has been searching devices with increasing frequency over the past couple of years, providing plenty of ammo for court challenges. Unfortunately, none have been successful. But maybe this damning testimony showing the government granting itself all sorts of leeway might finally result in some restoration of our rights at our borders. The many details of border search policies are detailed in the EFF/ACLU's motion for summary judgment [PDF], asking the court to side with Americans and their rights, rather than exaggerated claims about the insecurity of our nation.The CBP's policies place almost no restrictions on searches of devices. Basic searches -- which involve an agent paging through a phone's contents manually, rather than using another device to perform a forensic search -- can be done with zero reasonable suspicion.Policy allows officers to retain devices for as long as they want. The policy says retention shouldn't exceed five days, but there is no upper limit to how long the CBP can hold onto a device with supervisory approval. The policies also allow the CBP to retain data from devices even when it has no probable cause to do so.This information is then shared with a number of other agencies, which the CBP can't be bothered to vet.

The constitutional challenge to FOSTA chugs on. A few weeks ago the DOJ filed its opposition brief to defend FOSTA, and then last week several amicus briefs were filed intending to support the government's side. But in reading the one filed by twenty-one state attorneys general, it seems that's not what it did.The important thing to remember about this appeal is that the question before the appeals court isn't really about the constitutionality of FOSTA itself. What's being appealed is the case having been dismissed for lack of standing by the plaintiffs. The district court never directly ruled on the constitutionality of the law; it only ruled that these plaintiffs had no right to complain about it to the courts. According to the district court these plaintiffs weren't being hurt, or likely to be hurt, by FOSTA, and so it dismissed their case. What the parties are fighting about now is whether this assessment by the district court was right.For the plaintiffs it makes sense to keep pressing the constitutional issue because shining a light on the unconstitutionality of the law illuminates the injury the unconstitutionality has already caused and will continue to cause. But the defense has a different and much simpler job. All the DOJ has to do to defend FOSTA is say is, "The district court was right. These people were not hurt by FOSTA and will not be hurt by FOSTA, so keep this case dismissed." If the appeals court agrees that there has been no injury, and that there is unlikely to be any injury, then the case remains dismissed and this constitutional challenge goes away.And so that's what the DOJ's brief basically does: parrot the district court's decision that there is nothing to see here. The DOJ spent its pages arguing that there has been no injury, nor is there the likelihood of any injury, because FOSTA could not possibly empower prosecutors to reach the plaintiffs.

Any review of the recent posts we've done on gaming giant Nintendo would certainly reveal a disappointing trend. That trend appears to be the company, which has always maintained an aggressively tight grip on its IP, upping its efforts to take down all kinds of ROM sites, fan-made games, and gaming leaks. Gamers here may also already be aware that there is something of an odd fascination in gaming communities with the Commodore 64, an 8-bit gaming computer created way back in 1982 and discontinued in the early 90s. There are thriving modding and porting communities dedicated to figuring out how to get the C64 to do things it was never intended to do.Which perhaps makes it surprising that it was only in the last week or so that someone figured out how to get a working C64 to be able to play a port of the original Super Mario Bros. The whole enterprise appears to have nothing to do with wanting to play an illicit copy of the 80s game and everything instead to do with a community of enthusiasts simply tinkering and seeing what could be pulled off for fun. Getting Mario on a Commodore apparently took something like seven years and was hailed as an achievement by the Commodore community. Reactions such as the below are indicative of the responses.

Back during an earlier round of the never-ending legal dispute between Oracle and Google concerning whether or not APIs can be covered by copyright the Supreme Court requested that the White House weigh in on its opinion -- leading then Solicitor General Donald Verrilli (formerly a top lawyer for the MPAA) to weigh in with what we argued was a painfully clueless brief. The underlying issue here, from the very beginning, revolves almost entirely around the simple point: do you actually understand what an API is? If you do -- and recognize that it's fundamentally different from executing software code -- then this is an easy case. An API is simply an instruction set -- a recipe of sorts -- for being able to interface with a particular program. And US copyright law is clear that copyright cannot apply to any "idea, procedure, process, system, method of operation, concept, principle, or discovery."An API is easily covered by that designation, but because you have non-technical lawyers who can't understand the difference between software operating code (which is copyrightable) and an API (which is not) they argue that the two are virtually identical, and thus APIs should be covered by copyright. Tragically, that argument worked at the appeals court (it didn't work at the district court, where Judge Alsup already had some coding history and famously taught himself how to program in Java to better understand the facts of the case).Now that the case is back on appeal to the Supreme Court, looking specifically at questions of fair use around the reuse of an API, the Supreme Court has (somewhat oddly) asked the White House to weigh in again. As part of its Monday orders it invited the White House to give its opinion on whether or not it should even hear the case (not yet on the actual merits of either side's case):

Because there's no shortage of people willing to believe someone else's millions can be theirs with minimal effort, another semi-celebrity has hopped aboard law firm Pierce Bainbridge's Fortnite-suing money train. Destination unknown.The law firm has helped everyone from former sitcom star Alfonso Ribeiro to a sentient meme known as "Backpack Kid" throw money into a federal court holes over the past several months. Thanks to a recent ruling by the Supreme Court, most of its copyright infringement lawsuits are on hold because the plaintiffs have yet to actually have protection granted for their dance moves by the US Copyright Office.It's not like this is just a matter of waiting out the Office. The Copyright Office has made it clear it will only extend copyright protection to dance moves showing sufficient creativity. It's not likely to find most of the dance moves being sued over worth protecting as most of them consist of only a "few movements or steps with minor linear or spatial variations." One of the first litigants to jump into the Sue Fortnite pool -- Alfonso Ribeiro -- has already been rejected by the federal government.Unfortunately, the lawsuits continue, as Nick Statt reports for The Verge.

We've written a few times about an unfortunate case out of Wisconsin. Someone used the Armslist platform to find a gun to buy and then killed people with it. This led to a lawsuit against Armslist seeking to hold it liable for this terrible crime, which then led to a ruling by the Wisconsin Court of Appeals that ignored two decades of Section 230 precedent to allow the lawsuit to go forward. Last year the Copia Institute filed an amicus brief urging the Wisconsin Supreme Court to review the Court of Appeals decision, and, after it granted that review, this year we filed another brief urging it to reverse the decision. This week it did.

In 2015, following a tragic shooting in San Bernardino, California, Congress faced a difficult issue. The Federal Bureau of Investigations (FBI) was in possession of a locked iPhone that belonged to one of the shooters, and it wanted to gain access to that phone as part of its investigation. Members of Congress found themselves in the middle of a contentious debate over whether Apple should be required to unlock the phone to give the FBI access to its contents. During this pivotal time, Congress did not have an unbiased source of information to turn to for an explanation of the technical feasibility and societal implications of requiring Apple to enable the FBI to bypass those protections. In the absence of such a source, we were forced to rely solely on the input of the FBI and of Apple—two players who had strong, conflicting interests at play in the debate.But that wasn’t always the case. For more than twenty years we had the Office of Technology Assessment (OTA), an independent, bipartisan agency set up to provide unbiased information on technology and its potential impacts. However, in 1995 the agency was defunded, stripping Congress of the ability to access unbiased tech advisors as we entered the digital age. Today, as Americans are feeling the effects of emerging technologies—including issues around data privacy and artificial intelligence—we are experiencing the repercussions of the decision to defund this vital piece of the Congressional support system.Although some have suggested that the Government Accountability Office (GAO)’s new Science, Technology Assessment, and Analytics (STAA) team should fulfill the role of the OTA, or that the combination of GAO and the Congressional Research Service (CRS) can meet Congress’ technology expertise needs, relying solely on GAO and CRS for all of our technology assessment needs is a short-sighted solution. Despite the potential of GAO’s new STAA team and the fine tradition of CRS, neither of these two organizations—independently or combined—fill the void left by the shuttering of the OTA. In the ecosystem of Congressional support agencies CRS summarizes; GAO evaluates; and the OTA anticipates.During the encryption debate following the San Bernardino shooting, CRS generated a report outlining the debate and summarizing existing knowledge and laws on encryption and law enforcement investigations. GAO could have initiated a study focused on analyzing what happened and how the situation could be handled in the future. However, only the OTA is set up to anticipate this issue and have the foundational expertise to inform Congress about both the technological and policy questions at play when the issue arose.Americans are starting to take notice of the lack of effective lawmaking following some of the biggest technology scandals in recent times. Without the OTA’s forward-thinking approach, Congress’ ability to address the technological challenges of the present, and of the future, will fall short of what effective lawmaking during the ever-evolving digital age demands. A well-funded agency whose sole purpose is advising Congress on technology issues, free from the influence of corporate and special interests, is absolutely necessary.Congress’ technology assessment needs will only continue to grow as we work to anticipate the potential benefits and effects of emerging technologies. As we consider the use of technologies such as AI, facial recognition, quantum computing, and emerging energy storage and generation in both the private and public sectors, it is increasingly important that Congress have unbiased assessments of what is on the horizon. While CRS and GAO are well equipped to look at what is known and what has already happened, and to identify questions and gaps, the OTA’s role is to chart the way forward by generating new knowledge that answers those questions and fills those gaps.We must make strategic investments in our ability to encourage innovation, understand its benefits, and help constituents be best equipped for the challenges emerging technologies may bring. Technology is transforming our daily lives. We should not fear it; we should be well-prepared to deal with the changes it will create—the Office of Technology Assessment will help us do just that.

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For all the completely evidence-free talk of "anti-conservative bias" on social media, as we keep pointing out, the real problem is that moderating content at scale is impossible to do well. I know I've been repeating this a lot lately, but it's because some people still don't seem to be getting this, or why it's important.Take, for example, this recent USA Today story talking about the content moderation woes not of conservatives on the platform, but of black users trying to talk about racism on Facebook. Or women talking about sexism. It's getting blocked as hate speech.

We've highlighted for years how flimsy (read: often nonexistent) privacy and security standards in the internet of things space is opening the door to all kinds of problems, from historically-massive DDOS attacks to your refrigerator leaking your Gmail login data. And while your your not-so-smart kettle exposing your network credentials is intimidating enough, the problem is far more worrisome in the "smart" automobile space, where a compromised system could prove decidedly more, oh, fatal.Most modern car infotainment GUIs hint at the sloppiness lingering just beneath. Security researchers have routinely highlighted how many cars are absurdly vulnerable to not just hacking but a near-total takeover of in-car systems. They've similarly noted how historically, automaker efforts to patch these vulnerabilities are slow to arrive--if they arrive at all.Granted it's not just retail vehicles that pose a security risk. Last week, researchers highlighted how GPS units installed in many fleet automobiles (designed to help companies track their shipments or employees as they travel) could also be somewhat easily compromised, allowing attackers to track these vehicles and their drivers without their permission:

Early last month, it appeared the NSA was ready to shut down its bulk phone records collection. The subject of the first Snowden leak was argued to be an essential part of the national security process, but as it underwent significant modifications, the NSA seemed willing to sacrifice a program of dwindling value to save its more intrusive collections.This perhaps inadvertent revelation came via a podcast, which is just the way things are done these days. Appearing on the Lawfare podcast, national security advisor Luke Murry had this to say about the Section 215 phone records collection:

Another life -- two of them actually -- has been destroyed by a law enforcement smash-and-grab operation. Acting on information residing solely in the nostrils of a single law enforcement officer, Alabama deputies destroyed a house and took possession of everything of value in it. C.J. Ciaramella has more details at Reason.

Another life -- two of them actually -- has been destroyed by a law enforcement smash-and-grab operation. Acting on information residing solely in the nostrils of a single law enforcement officer, Alabama deputies destroyed a house and took possession of everything of value in it. C.J. Ciaramella has more details at Reason.

When we learned about this project a couple of years ago we promised Bob Schwartz we'd run a plug for it when the time is right. Today is Jazz Appreciation Day and the crowdfunding has begun, so the time is now right. Here is Bob’s plug:You realize something needs to be done and you are the only one crazy enough to do it. This happened when my law and music worlds collided: A D.C. restaurant stopped booking live music due to license demands from a Performance Rights Organization. I suggested that bands could play "originals," and play from a book of Public Domain popular music – but no such book exists – even though as of Jan. 1, 2019 more music is entering the Public Domain.I realized I knew the very best music, law, and library people to create such a book, of 370 songs, and to give it away – in text and musical notation software, free for creative use and adaptation – as an Open Educational Resource. And to add up to 50 more "1924" tunes next Jan. 1. But this would mean raising all the money in advance to pay the curator / arrangers, who have agreed they would not claim any purported (and dubious) rights in their research, notation, harmonization, notes, or formatting, or in the compilation itself. If any such rights exist they will be licensed cc-0.I'm happy and relieved to report that the Public Domain Song Anthology will be acquired and sponsored by The Music Library Association (MLA), Peabody Institute (Johns Hopkins), the University of Michigan, and the University of Virginia.These university libraries and other MLA members have raised their share of the necessary funds, including for the publication of a print volume for subscribing libraries and donors. The rest, according to plan, must come from a public-facing crowd-funding campaign. Mike and Techdirt, who have their own share of worthy causes, have generously agreed to let me include this link to the Indiegogo page for completion of this project, which includes avenues for corporate or foundation sponsorship. For other means, including donor-advised support, contact me or MLA's Open Access Editor Kathleen DeLaurenti. Thanks.

Last year the Eleventh Circuit held that the Georgia statutory code, including annotations, was not protected by copyright. It was an important decision, not just for Carl Malamud's PublicResource.org, which had been sued for publishing Georgia's operative statutory law, including the annotations, but for any member of the public who necessarily needs to be able to freely access the law that governs them.Georgia has now petitioned the US Supreme Court to review the Eleventh Circuit's decision. But more significantly, Public Resource is also planning to file a brief encouraging that review. Not because Public Resource wants the decision reversed, of course. But because it wants the decision to be affirmed.Here's the situation. If the Supreme Court declines to review the decision, it will stand. That's a good thing, because it means there would be no risk of infringing copyright in publishing the Georgia state code. Given the decision's reasoning, it would also be difficult for any other state within the Eleventh Circuit to assert copyright in its statutory code either. But for any other state outside the Eleventh Circuit the question of whether statutory law could be copyrighted would remain unsettled. The Eleventh Circuit's decision is persuasive authority that courts elsewhere may defer to, but it's not binding authority, so they don't have to. What the Eleventh Circuit got right they could still get wrong.Also, even if other courts were to ultimately follow in the Eleventh Circuit's footsteps, it is arduous and expensive to have to litigate in each state and circuit in order to get to that point. Meanwhile plenty of publicly-beneficial uses will remain chilled by the fear of potential litigation and liability as we wait for all these courts to eventually rule that this public access, unrestrained by copyright, is OK.It would be much more efficient if the Supreme Court could just cut to the chase now and affirm that the Eleventh Circuit's holding is the law of the land. The case is ready and ripe for review, with especially cogent reasoning, so taking up this one would be much more expedient than having to wait for any other case to finally reach the petition stage. After all, the public's need to access the law that governs it is just as critical now as it will be later.An amicus brief is being put together on behalf of law students, legal educators, and lawyers who are solo practitioners or in small firms to remind the court of this fact. All of these constituencies need access to the law, and not just superficial access, but meaningful access that will allow for the analysis necessary to teach, learn, and practice the law as clients, current and future, need. Yet neither are economically in the position to be able to easily afford the subscription fees they have to pay the commercial databases which are able to monopolize access to the law when states can get away with demanding paid licenses for it. Small law firms and solo practitioners are at a distinct disadvantage to large firms who, with generally wealthier clients, are better able to absorb these costs. And all are at a disadvantage to their peers in Georgia, who no longer need to pay to get access to what the Eleventh Circuit recognized was "intrinsically public domain material, belonging to the People."If you are a solo or small firm lawyer, or are a law student, and would like to sign on as an amicus to encourage this Supreme Court review, click through the link above to the brief, where there is a form through which you may add your name before midnight on May 2.Disclosure: I've contributed to the drafting of this brief.

Whether it's from his novels, or his work for the EFF and others, most of you probably know all about Cory Doctorow. He last joined the podcast two years ago to discuss his book Walkaway, and this week he's back to talk about his latest book, Radicalized — a collection of four novellas, the first of which is directly based on the issues with the DMCA's anti-circumvention provisions. Check out the episode for a discussion about the book, anti-circumvention, tech companies, and more.Follow the Techdirt Podcast on Soundcloud, subscribe via iTunes or Google Play, or grab the RSS feed. You can also keep up with all the latest episodes right here on Techdirt.

So we've noted for a while now how the Trump administration's protectionist bid to ban Huawei from US networks is a bit light on, you know, public evidence. While Huawei is now routinely lambasted for helping the Chinese government directly spy on American consumers, there's still no public evidence that supports that claim. That hasn't stopped the administration from waging an all out war on the company, ranging from pressuring the FCC to pressure carriers to avoid Huawei phones, to banning ISPs from getting public subsidies if they use Chinese equipment.The problem, again, is that despite an 18 month investigation the last time these concerns flared up, there's been absolutely no public evidence Huawei spies on US consumers. The other problem: numerous US hardware vendors have a bit of a history of drumming up lawmaker hysteria on this front to their own benefit.The Trump administration's protectionist gambit has had a lot of help from a US media that isn't particularly keyed into this added context, or how patriotism may color their coverage of the issue. The latest case in point: Bloomberg this week issued what seemed like a bombshell report claiming they'd finally found evidence of Huawei installing seemingly nefarious backdoors in their gear:

In response to who knows what -- maybe just a desire to make it easier for the government to track/investigate internet users -- the Austrian government wants to eliminate online anonymity in its country by 2020. The proposed law says pseudonyms are still allowed, but they'll be linked to accounts that require users to provide site operators with a ton of personal information.

The Complete Learn to Code Master Class Bonus Bundle has 11 courses to get you up to speed with popular programming languages. You'll learn about C++, Python, Google Go, JavaScript, and more. It's on sale for $29.Note: The Techdirt Deals Store is powered and curated by StackCommerce. A portion of all sales from Techdirt Deals helps support Techdirt. The products featured do not reflect endorsements by our editorial team.